Pakistan's top court declares invasive test in rape cases unconstitutional

A general view of the Supreme Court building in Islamabad, Pakistan on July 28, 2017. (AFP/File)

• 'In a criminal trial relating to rape, it is the accused who is on trial and not the victim,' says Supreme Court
• Dragging a woman's sexual history and using derogatory expressions to malign her character are also illegal

ISLAMABAD: Pakistan's top court on Thursday issued a detailed verdict in a rape case, declaring an invasive test and dragging the sexual history of a survivor in such cases against the country's constitution.
Written by Justice Syed Mansoor Ali Shah, the judgement made several references to scholarly material and other relevant documents to establish that the "two-finger" or "virginity" test had no scientific justification or evidentiary relevance in rape cases and that it was primarily used to discredit the woman in question.
"A woman, whatever her sexual character or reputation may be, is entitled to equal protection of law," the judgement said. "No one has the license to invade her person or violate her privacy on the ground of her alleged immoral character."
The apex court further observed that "in a criminal trial relating to rape, it is the accused who is on trial and not the victim."
Rights activists in Pakistan have long described "two finger test" as highly degrading, arguing that it further traumatizes a rape survivor.
The country's top court also upheld the same view, pointing out that any attempt to drag the sexual history of rape survivors or subjecting them to a virginity test "violates Article 4(2)(a) of the Constitution, which mandates that no action detrimental to the body and reputation of person shall be taken except in accordance with law."
"Similarly Article 14 of our Constitution mandates that dignity shall be inviolable, therefore, reporting sexual history of a rape survivor amounts to discrediting her independence, identity, autonomy and free choice thereby degrading her human worth and offending her right to dignity guaranteed under Article 14 of the Constitution," it added.
The Supreme Court also asked the subordinate judiciary to "discontinue the use of painfully intrusive and inappropriate expressions, like 'habituated to sex', 'woman of easy virtue', 'woman of loose moral character', and 'non-virgin', for the alleged rape victims even if they [the courts] find that the charge of rape is not proved against the accused."
The judgement further adds that "such expressions are unconstitutional and illegal."
The country's top court had already issued a short order in Atif Zareef & others v. The State on January 4, 2021, but it gave its detailed verdict on the matter on Thursday.